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A BILL TO BE ENTITLED
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AN ACT
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relating to a requirement that physicians file certain advertising |
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with the Texas Medical Board. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 153.002, Occupations Code, is amended to |
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read as follows: |
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Sec. 153.002. RULES RESTRICTING ADVERTISING OR COMPETITIVE |
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BIDDING. (a) The board may not adopt rules restricting advertising |
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or competitive bidding by a person regulated by the board except: |
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(1) to prohibit false, misleading, or deceptive |
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practices by the person; and |
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(2) as provided by Section 153.0021. |
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(b) The board may not include in its rules to prohibit |
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false, misleading, or deceptive practices by a person regulated by |
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the board a rule that: |
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(1) subject to Section 153.0021, restricts the use of |
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any advertising medium; |
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(2) restricts the person's personal appearance or the |
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use of the person's voice in an advertisement; |
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(3) relates to the size or duration of an |
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advertisement by the person; or |
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(4) restricts the person's advertisement under a trade |
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name. |
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SECTION 2. Subchapter A, Chapter 153, Occupations Code, is |
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amended by adding Section 153.0021 to read as follows: |
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Sec. 153.0021. FILING REQUIREMENTS FOR PUBLIC |
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ADVERTISEMENTS AND WRITTEN, RECORDED, ELECTRONIC, OR OTHER DIGITAL |
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SOLICITATIONS. (a) The board by rule shall establish an |
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advertising review committee to perform the duties assigned by this |
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section. |
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(b) Except as provided in paragraphs (c) and (e) of this |
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section, a physician shall file with the advertising review |
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committee, no later than the mailing or sending by any means, |
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including electronic, of a written, audio, audio-visual, digital |
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or other electronic solicitation communication: |
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(1) a copy of the written, audio, audio-visual, |
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digital, or other electronic solicitation communication being sent |
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or to be sent to one or more prospective patients for the purpose of |
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obtaining professional employment, together with a representative |
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sample of the envelopes or other packaging in which the |
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communications are enclosed; |
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(2) a completed physician advertising and |
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solicitation communication application; and |
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(3) a check or money order payable to the Texas Medical |
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Board for the fee set by the board. Such fee shall be for the sole |
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purpose of defraying the expense of enforcing the rules related to |
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such solicitations. |
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(b) Except as provided in paragraph (e) of this section, a |
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physician shall file with the advertising review committee, no |
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later than the first dissemination of an advertisement in the |
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public media, a copy of each of the physician's advertisements in |
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the public media. The filing shall include: |
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(1) a copy of the advertisement in the form in which it |
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appears or will appear upon dissemination, such as a videotape, |
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audiotape, DVD, CD, a print copy, or a photograph of outdoor |
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advertising; |
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(2) a production script of the advertisement setting |
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forth all words used and describing in detail the actions, events, |
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scenes, and background sounds used in such advertisement together |
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with a listing of the names and addresses of persons portrayed or |
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heard to speak, if the advertisement is in or will be in a form in |
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which the advertised message is not fully revealed by a print copy |
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or photograph; |
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(3) a statement of when and where the advertisement |
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has been, is, or will be used; |
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(4) a completed physician advertising and |
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solicitation communication application form: and |
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(5) a check or money order payable to the Texas Medical |
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Board for the fee set by the board. Such fee shall be for the sole |
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purpose of defraying the expense of enforcing the rules related to |
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such advertisements. |
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(c) Except as provided in paragraph (e) of this section, a |
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physician shall file with the advertising review committee no later |
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than its first posting on the internet or other comparable network |
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of computers information concerning the physician's or physician's |
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firm's website. As used in this section, a "website" means a single |
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or multiple page file, posted on a computer server, which describes |
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a physician or law firm's practice or qualifications, to which |
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public access is provided through publication of a uniform resource |
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locator (URL). The filing shall include: |
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(1) the intended initial access page of a website; |
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(2) a completed physician advertising and |
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solicitation communication application form and; |
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(3) a check or money order payable to the Texas Medical |
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Board for the fee set by the board. Such fee shall be for the sole |
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purpose of defraying the expense of enforcing the rules related to |
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such websites. |
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(d) A physician who desires to secure an advance advisory |
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opinion, referred to as a request for pre-approval, concerning |
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compliance of a contemplated solicitation communication or |
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advertisement may submit to the Physician Advertising Review |
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Committee, not less than thirty (30) days prior to the date of |
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first dissemination, the material specified by this section or the |
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intended initial access page submitted pursuant to this section, |
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including the application form and required fee; provided however, |
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it shall not be necessary to submit a videotape or DVD if the |
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videotape or DVD has not then been prepared and the production |
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script submitted reflects in detail and accurately the actions, |
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events, scenes, and background sounds that will be depicted or |
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contained on such videotapes or DVDs, when prepared, as well as the |
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narrative transcript of the verbal and printed portions of such |
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advertisement. If a physician submits an advertisement or |
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solicitation communication for pre-approval, a finding of |
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noncompliance by the Advertising Review Committee is not binding in |
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a disciplinary proceeding or disciplinary action, but a finding of |
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compliance is binding in favor of the submitting physician as to all |
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materials actually submitted for pre-approval if the |
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representations, statements, materials, facts, and written |
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assurances received in connection therewith are true and are not |
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misleading. The finding of compliance constitutes admissible |
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evidence if offered by a party. |
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(e) The filing requirements of paragraphs (a), (b), and (c) |
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do not extend to any of the following materials, provided those |
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materials comply with other applicable law or board rule: |
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(1) an advertisement in the public media that contains |
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only part or all of the following information, |
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(i) the name of the physician or firm and |
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physicians associated with the firm, with office addresses, |
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electronic addresses, telephone numbers, office and telephone |
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service hours, telecopier numbers, and a designation of the |
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profession such as "doctor," "physician," "medical office," or |
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"firm"; |
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(ii) the particular areas of law in which the |
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physician or firm specializes or possesses special competence; |
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(iii) the particular areas of law in which the |
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physician or firm practices or concentrates or to which it limits |
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its practice; |
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(iv) the date of licensure of the physician or |
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physicians by the Texas Medical Board and by other state medical |
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licensing boards; |
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(v) technical and professional licenses or |
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certifications granted by this state and other recognized licensing |
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or certifying authorities; |
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(vi) foreign language ability; |
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(vii) fields of medicine in which one or more |
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physicians are certified or designated, provided the statement of |
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this information is in compliance with other applicable law or |
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board rule; |
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(viii) identification of prepaid or group |
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medical plans in which the physician participates; |
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(ix) the acceptance or nonacceptance of credit |
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cards; |
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(x) any fee for initial consultation and fee |
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schedule; |
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(xi) other publicly available information |
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concerning medical issues, not prepared or paid for by the firm or |
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any of its physicians, such as news articles, legal articles, |
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editorial opinions, or other medical developments or events; |
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(xii) in the case of a website, links to other |
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websites; |
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(xiii) that the physician or firm is a sponsor of |
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a charitable, civic, or community program or event, or is a sponsor |
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of a public service announcement; |
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(xiv) any disclosure or statement required by |
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these rules; and |
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(xv) any other information specified from time to |
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time as promulgated by the board; |
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(2) an advertisement in the public media that: |
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(i) identifies one or more physicians or a firm |
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as a contributor to a specified charity or as a sponsor of a |
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specified charitable, community, or public interest program, |
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activity, or event; and |
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(ii) contains no information about the |
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physicians or firm other than names of the physicians or firm or |
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both, location of the medical offices, and the fact of the |
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sponsorship or contribution; |
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(3) a listing or entry in a regularly published |
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directory of physicians; |
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(4) an announcement card stating new or changed |
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associations, new offices, or similar changes relating to a |
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physician or firm, or a tombstone professional card; |
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(5) in the case of communications sent, delivered, or |
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transmitted to, rather than accessed by, intended recipients, a |
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newsletter, whether written, digital, or electronic, provided that |
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it is sent, delivered, or transmitted mailed only to: |
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(i) existing or former patients; or |
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(ii) other physicians or professionals. |
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(6) a solicitation communication that is not motivated |
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by or concerned with a particular past occurrence or event or a |
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particular series of past occurrences or events, and also is not |
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motivated by or concerned with the prospective patient's specific |
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existing legal problem of which the physician is aware; |
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(7) a solicitation communication if the physician's |
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use of the communication to secure professional employment was not |
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significantly motivated by a desire for, or by the possibility of |
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obtaining, pecuniary gain; or |
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(8) a solicitation communication that is requested by |
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the prospective patient. |
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(f) If requested by the Advertising Review Committee, a |
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physician shall promptly submit information to substantiate |
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statements or representations made or implied in any advertisement |
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in the public media and/or written solicitation communication by |
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which the physician seeks paid professional employment. |
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SECTION 3. Not later than December 1, 2009, the Texas |
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Medical Board shall adopt the rules necessary to implement Section |
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153.0021, Occupations Code, as added by this Act. |
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SECTION 4. (a) Notwithstanding Section 153.0021, |
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Occupations Code, as added by this Act, a physician is not required |
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to obtain the Texas Medical Board's approval to post the physician's |
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public access website on the Internet until June 1, 2010. The board |
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by rule may provide for staggered submission of Internet website |
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approval forms for approval of physician websites posted before |
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that date. |
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(b) A physician who, as of the effective date of this Act, |
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has posted a public access website regarding the physician's |
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practice on the Internet shall submit the application for approval |
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of the website required by Section 153.0021, Occupations Code, as |
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added by this Act, to the Texas Medical Board on renewal of the |
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physician's license to practice medicine. |
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SECTION 5. This Act takes effect September 1, 2009. |